Purchase and Sale of Note and Warrant Clause Example with 29 Variations from Business Contracts

Purchase and Sale of Note and Warrant. (a) Purchase of Notes and Warrants. Subject to the satisfaction (or waiver) of the conditions set forth in Sections 6 and 7 below, the Company shall issue and sell to each Buyer, Buyer purchasing at such Closing, and each such Buyer severally, but not jointly, agrees to shall purchase from the Company on the at such Closing Date (as defined below) below), a Note in the original principal amount as is set forth opposite such Buyer's name in column (3) on the Schedule of Buyers, Buyers as being pu...rchased by such Buyer at such Closing along with Warrants to initially acquire up to that aggregate number of Warrant Shares as is set forth opposite such Buyer's name in column (4) on the Schedule of Buyers. (b) Closing. The closing (the "Closing") "Initial Closing") of the initial purchase of the Notes and the Warrants by the Buyers shall occur at the offices of Kelley Drye & Warren Sichenzia Ross Friedman Ference LLP, 101 Park Avenue, 61 Broadway, 32nd Floor, New York, NY 10178. New York 10006. The date and time of the initial Closing (the "Closing "Initial Closing Date") shall be 10:00 a.m., New York time, on the first (1st) Business Day on which the conditions to the Closing set forth in Sections 6 and 7 below are satisfied or waived (or such other later date as is mutually agreed to by the Company and each Buyer). In the event there is more than one closing, the terms "Closing" and "Closing Date" shall apply to each such closing and closing date unless otherwise specified. As used herein "Business Day" means any day other than a Saturday, Sunday or other day on which commercial banks in New York, New York are authorized or required by law to remain closed. (c) Notes and Warrants. After the Initial Closing, the Company may sell, on the same terms and conditions as those contained in this Agreement, up to $975,000 of original principal amount of Notes (the "Additional Notes"), along with Warrants to acquire up to that aggregate number of Warrant Shares that provides such additional purchaser(s) 33% warrant coverage on the Notes being purchased by it based on the fixed conversion price of the Notes (the "Additional Warrants"), to one or more purchasers (the "Additional Buyers"), provided that (i) such subsequent sale is consummated prior to 45 days after the Initial Closing and (ii) each Additional Buyer shall become a party to the Transaction Documents (as defined below), by executing and delivering a counterpart signature page to each of the Transaction Documents. The Schedule of Buyers to this Agreement shall be updated to reflect the number of Additional Notes and Additional Warrants purchased at each such Closing and the parties purchasing such Additional Notes and Additional Warrants. (d) Purchase Price. The aggregate purchase price for the Notes and the Warrants to be purchased by each Buyer (the "Purchase Price") shall be the amount set forth opposite such Buyer's name in column (5) on the Schedule of Buyers. Each Buyer shall pay $950 for each $1,000 of principal amount of Notes and related Warrants to be purchased by such Buyer at the Closing. Each Buyer and the Company agree that the Notes and the Warrants constitute an "investment unit" for purposes of Section 1273(c)(2) of the Internal Revenue Code of 1986, as amended (the "Code"). The Buyers and the Company mutually agree that the allocation of the issue price of such investment unit between the Notes and the Warrants in accordance with Section 1273(c)(2) of the Code and Treasury Regulation Section 1.1273-2(h) shall be an aggregate amount of $14,000 allocated to the Warrants and the balance of the Purchase Price allocated to the Notes, and neither the Buyers nor the Company shall take any position inconsistent with such allocation in any tax return or in any judicial or administrative proceeding in respect of taxes. (d) 2 (e) Form of Payment. On the Closing Date, Prior to each Closing, (i) each Buyer shall pay its respective Purchase Price (less, in the case of any Buyer, the amounts withheld pursuant to Section 4(g)) to the Company for the Notes and the Warrants to be issued and sold to such Buyer at the Closing, by wire transfer of immediately available funds in accordance with to the Flow of Funds Letter Escrow Agent (as defined below) in the Escrow Agreement) and (ii) the Company shall deliver to each Buyer the Escrow Agent (A) a Note in the aggregate original principal amount as is set forth opposite such Buyer's name in column (3) of on the Schedule of Buyers, Buyers and (B) a Warrant pursuant to which such Buyer shall have the right to initially acquire up to such aggregate number of Warrant Shares as is set forth opposite such Buyer's name in column (4) of on the Schedule of Buyers, in each case, all cases, duly executed on behalf of the Company and registered in the name of such Buyer or its designee. View More

Purchase and Sale of Note and Warrant. (a) Purchase of Notes Note and Warrants. Warrant. Subject to the satisfaction (or waiver) of the conditions set forth in Sections 6 and 7 below, the Company shall issue and sell to each Buyer, and each Buyer severally, but not jointly, agrees to shall purchase from the Company on the Closing Date (as defined below) a the Note in the original principal amount as is set forth opposite such Buyer's name in column (3) on the Schedule of Buyers, $1,250,000.00 along with Warrants a Warrant to initiall...y acquire up to that aggregate number of 925,925,925 Warrant Shares as is set forth opposite such Buyer's name in column (4) on the Schedule of Buyers. Shares. (b) Closing. The closing (the "Closing") of the purchase of the Notes Note and the Warrants Warrant by the Buyers shall occur at the offices of Kelley Drye & Warren LLP, 101 Park Avenue, New York, NY 10178. virtually. The date and time of the Closing (the "Closing Date") shall be 10:00 a.m., New York time, on the first (1st) Business Day on which the conditions to the Closing set forth in Sections 6 and 7 below are satisfied or waived (or such other date as is mutually agreed to by the Company and each Buyer). As used herein "Business Day" means any day other than a Saturday, Sunday or other day on which commercial banks in New York, New York are authorized or required by law to remain closed. (c) Purchase Price. The aggregate purchase price for the Notes Note and the Warrants Warrant to be purchased by each the Buyer (the "Purchase Price") shall be One Million, Two Hundred Fifty Thousand ($1,250,000.00) US Dollars which shall be net funded in accordance with the Flow of Funds Letter (as defined below) to reflect the cash amount set forth opposite such Buyer's name in column (5) on the Schedule of Buyers. Each Buyer shall pay $950 for each $1,000 of principal amount of Notes and related Warrants to be purchased paid by such Buyer at the Closing. Each (the "Cash Purchase Price"). Buyer and the Company agree that the Notes Note and the Warrants Warrant constitute an "investment unit" for purposes of Section 1273(c)(2) of the Internal Revenue Code of 1986, as amended (the "Code"). The Buyers Buyer and the Company mutually agree that the allocation of each dollar of the issue price of such investment unit between the Notes Note and the Warrants in accordance with Warrant solely for the purposes of Section 1273(c)(2) of the Code and Treasury Regulation Section 1.1273-2(h) shall be an aggregate amount of $14,000 $0.00 allocated to the Warrants Warrant and the balance of the Purchase Price allocated to the Notes, Note, and neither the Buyers Buyer nor the Company shall take any position inconsistent with such allocation in any tax return or in any judicial or administrative proceeding in respect of taxes. (d) Form of Payment. On the Closing Date, (i) each Buyer shall pay its respective the Purchase Price (less, in the case of any Buyer, (less the amounts withheld pursuant to Section 4(g)) 4(h)) to the Company for the Notes Note and the Warrants Warrant to be issued and sold to such Buyer at the Closing, by wire transfer of the Cash Purchase Price by wire transfer of immediately available funds in accordance with the Flow of Funds Letter (as defined below) and (ii) the Company shall deliver to each Buyer (A) a the Note in the aggregate original principal amount as is set forth opposite such Buyer's name in column (3) of above, and the Schedule of Buyers, and (B) a Warrant pursuant to which such Buyer shall have the right to initially acquire up to such aggregate number of Warrant Shares as is set forth opposite such Buyer's name above, in column (4) of the Schedule of Buyers, in each case, all cases, duly executed on behalf of the Company and registered in the name of such Buyer or its designee. (e) Rank. The Note shall rank pari passu with the Permitted Indebtedness (as set forth on Schedule 3(m)(ii)). (f) Payoff of Other Notes. Effective as of the Closing Date the Company will pay off, in full, the promissory notes referenced on Schedule 3(m)(ii) (except the Permitted Indebtedness). View More

Purchase and Sale of Note and Warrant. (a) Purchase of Notes Note and Warrants. Warrant. Subject to the satisfaction (or waiver) of the conditions set forth in Sections 6 and 7 below, the Company shall issue and sell to each Buyer, and each Buyer severally, but not jointly, agrees to shall purchase from the Company on the Closing Date (as defined below) a the Note in the original principal amount as is set forth opposite such Buyer's name in column (3) on the Schedule of Buyers, $200,000.00 along with Warrants a Warrant to initially ...acquire up to that aggregate number of to148,148,148 Warrant Shares as is set forth opposite such Buyer's name in column (4) on the Schedule of Buyers. Shares. (b) Closing. The closing (the "Closing") of the purchase of the Notes Note and the Warrants Warrant by the Buyers shall occur at the offices of Kelley Drye & Warren LLP, 101 Park Avenue, New York, NY 10178. virtually. The date and time of the Closing (the "Closing Date") shall be 10:00 a.m., New York time, on the first (1st) Business Day on which the conditions to the Closing set forth in Sections 6 and 7 below are satisfied or waived (or such other date as is mutually agreed to by the Company and each Buyer). As used herein "Business Day" means any day other than a Saturday, Sunday or other day on which commercial banks in New York, New York are authorized or required by law to remain closed. (c) Purchase Price. The aggregate purchase price for the Notes Note and the Warrants Warrant to be purchased by each the Buyer (the "Purchase Price") shall be Two Hundred Thousand ($200,000.00) US Dollars which shall be net funded in accordance with the Flow of Funds Letter (as defined below) to reflect the cash amount set forth opposite such Buyer's name in column (5) on the Schedule of Buyers. Each Buyer shall pay $950 for each $1,000 of principal amount of Notes and related Warrants to be purchased paid by such Buyer at the Closing. Each (the "Cash Purchase Price"). Buyer and the Company agree that the Notes Note and the Warrants Warrant constitute an "investment unit" for purposes of Section 1273(c)(2) of the Internal Revenue Code of 1986, as amended (the "Code"). The Buyers Buyer and the Company mutually agree that the allocation of each dollar of the issue price of such investment unit between the Notes Note and the Warrants in accordance with Warrant solely for the purposes of Section 1273(c)(2) of the Code and Treasury Regulation Section 1.1273-2(h) shall be an aggregate amount of $14,000 $0.00 allocated to the Warrants Warrant and the balance of the Purchase Price allocated to the Notes, Note, and neither the Buyers Buyer nor the Company shall take any position inconsistent with such allocation in any tax return or in any judicial or administrative proceeding in respect of taxes. (d) Form of Payment. On the Closing Date, (i) each Buyer shall pay its respective the Purchase Price (less, in the case of any Buyer, the amounts withheld pursuant to Section 4(g)) to the Company for the Notes Note and the Warrants Warrant to be issued and sold to such Buyer at the Closing, by wire transfer of the Cash Purchase Price by wire transfer of immediately available funds in accordance with the Flow of Funds Letter (as defined below) and (ii) the Company shall deliver to each Buyer (A) a the Note in the aggregate original principal amount as is set forth opposite such Buyer's name in column (3) of above, and the Schedule of Buyers, and (B) a Warrant pursuant to which such Buyer shall have the right to initially acquire up to such aggregate number of Warrant Shares as is set forth opposite such Buyer's name above, in column (4) of the Schedule of Buyers, in each case, all cases, duly executed on behalf of the Company and registered in the name of such Buyer or its designee. (e) Intentionally Omitted. (f) Intentionally Omitted. View More

Purchase and Sale of Note and Warrant. (a) Purchase of Notes and Warrants. Subject to the satisfaction (or waiver) of the conditions set forth in Sections 6 and 7 below, the Company shall issue and sell to each Buyer, and each Buyer severally, but not jointly, agrees to purchase from the Company on the Closing Date (as defined below) a Note in the original principal amount as is set forth opposite such Buyer's name in column (3) on the Schedule of Buyers, Buyers along with Warrants to initially acquire up to that such aggregate numbe...r of Warrant Shares Warrants as is set forth opposite such Buyer's name in column (4) on the Schedule of Buyers. (b) Closing. The closing (the "Closing") of the purchase of the Notes and the Warrants by the Buyers shall occur at the offices of Kelley Drye & Warren Akerman LLP, 101 Park 666 Fifth Avenue, New York, NY 10178. 10103. The date and time of the Closing (the "Closing Date") shall be 10:00 a.m., New York time, on the first (1st) Business Day on which the conditions to the Closing set forth in Sections 6 and 7 below are satisfied or waived (or such other date as is mutually agreed to by the Company and each Buyer). As used herein "Business Day" means any day other than a Saturday, Sunday or other day on which commercial banks in New York, New York are authorized or required by law to remain closed. (c) Purchase Price. The aggregate purchase price for the Notes and the Warrants to be purchased by each Buyer (the "Purchase Price") shall be the amount set forth opposite such Buyer's name in column (5) on the Schedule of Buyers. Each Buyer shall pay $950 approximately $950.00 for each $1,000 of principal amount of Notes and related Warrants to be purchased by such Buyer at the Closing. Each Buyer and the Company agree that the Notes and the Warrants constitute an "investment unit" for purposes of Section 1273(c)(2) of the Internal Revenue Code of 1986, as amended (the "Code"). The Buyers and the Company mutually agree that the allocation of the issue price of such investment unit between the Notes and the Warrants in accordance with Section 1273(c)(2) of the Code and Treasury Regulation Section 1.1273-2(h) shall be an aggregate amount of $14,000 $500 allocated to the Warrants and the balance of the Purchase Price allocated to the Notes, and neither the Buyers nor the Company shall take any position inconsistent with such allocation in any tax return or in any judicial or administrative proceeding in respect of taxes. (d) Form of Payment. On the Closing Date, (i) each Buyer shall pay its respective Purchase Price (less, in the case of any Buyer, the amounts withheld pursuant to Section 4(g)) to the Company for the Notes and the Warrants to be issued and sold to such Buyer at the Closing, by wire transfer of immediately available funds in accordance with the Flow of Funds Letter (as defined below) and (ii) the Company shall deliver to each Buyer (A) a Note in the aggregate original principal amount as is set forth opposite such Buyer's name in column (3) of the Schedule of Buyers, Buyers and (B) a Warrant pursuant Warrants to which such Buyer shall have the right to initially acquire up to purchase such aggregate number of Warrant Shares shares of Common Stock as is set forth opposite such Buyer's name in column (4) of the Schedule of Buyers, in each case, Buyers duly executed on behalf of the Company and registered in the name of such Buyer or its designee. 2 (e) Residency. Such Buyer is a resident of that jurisdiction specified below its address of the Schedule of Buyers. (f) Placement Agent Fees. On the Closing Date, the Company shall pay to Aegis Capital Corp., as placement agent (the "Placement Agent"), all fees (other than legal fees), reasonable and documented expenses, and reasonable and documented legal fees and expenses (collectively, the "Placement Agent Fees") due to the Placement Agent as of such Closing Date, pursuant to the terms of the engagement letter, dated as of June 29, 2015, as amended as of February 4, 2016, between the Company and the Placement Agent (the "Engagement Letter:), (i) with respect to any cash Placement Agent Fees, by wire transfer of immediately available funds in accordance with the Placement Agent's written wire instructions or (ii) with respect to any Placement Agent Fees to be paid in securities of the Company (as described in the Engagement Letter), by delivery to the Placement Agent of the certificate with respect to such securities duly executed on behalf of the Company and registered in the name of the Placement Agent or its designee(s). View More

Purchase and Sale of Note and Warrant. (a) Purchase of Notes and Warrants. Subject to the satisfaction (or waiver) of the conditions set forth in Sections 6 and 7 below, the Company shall issue and sell to each Buyer, and each Buyer severally, but not jointly, agrees to shall purchase from the Company on the Closing Date (as defined below) below), a Note in the original principal amount as is set forth opposite such Buyer's name in column (3) on the Schedule of Buyers, along with Warrants to initially acquire up to that aggregate num...ber of Warrant Shares as is set forth opposite such Buyer's name in column (4) on the Schedule of Buyers. documents. (b) Closing. The closing (the "Closing") of the purchase of the Notes and the Warrants by the Buyers shall occur at a place and time mutually agreeable to both the offices of Kelley Drye & Warren LLP, 101 Park Avenue, New York, NY 10178. The Buyer and the Company, but in no case shall the date and time of the Closing (the "Closing Date") shall be any later than 10:00 a.m., New York time, on the first (1st) Business Day on which the conditions to the Closing set forth in Sections 6 and 7 below are satisfied or waived (or such other later date as is mutually agreed to by the Company and each Buyer). As used herein "Business Day" means any day other than a Saturday, Sunday or other day on which commercial banks in New York, New York are authorized or required by law to remain closed. (c) Purchase Price. The aggregate purchase price for the Notes and the Warrants to be purchased by each Buyer (the "Purchase Price") shall be the amount amounts set forth opposite such Buyer's name in column (5) on the Schedule of Buyers. Each Buyer shall pay $950 for each $1,000 of principal amount of Notes and related Warrants to be purchased by such Buyer at the Closing. Each Buyer and the Company agree that the Notes and the Warrants constitute an "investment unit" for purposes of Section 1273(c)(2) of the Internal Revenue Code of 1986, as amended (the "Code"). The Buyers and the Company mutually agree that the allocation of the issue price of such investment unit between the Notes and the Warrants in accordance with Section 1273(c)(2) of the Code and Treasury Regulation Section 1.1273-2(h) shall be an aggregate amount of $14,000 allocated to the Warrants and the balance of the Purchase Price allocated to the Notes, and neither the Buyers nor the Company shall take any position inconsistent with such allocation in any tax return or in any judicial or administrative proceeding in respect of taxes. transaction documents. (d) Form of Payment. On the Closing Date, (i) each the Buyer shall pay its respective Purchase Price (less, in the case of any Buyer, the amounts withheld pursuant to Section 4(g)) to the Company for the Notes and the Warrants to be issued and sold to such Buyer at the Closing, by wire transfer of immediately available funds in accordance with the Flow of Funds Letter (as defined below) Company's written wire instructions and (ii) the Company shall deliver to each Buyer (A) a Note in the aggregate original principal amount as is set forth opposite such Buyer's name in column (3) of the Schedule of Buyers, and transaction documents. (B) a Warrant pursuant to which such Buyer shall have the right to initially acquire up to such aggregate number of Warrant Shares as is set forth opposite such Buyer's name in column (4) of the Schedule of Buyers, transaction documents, in each case, all cases, duly executed on behalf of the Company and registered in the name of such Buyer or its designee. For the avoidance of doubt, as consideration for all or any portion of the Purchase Price, the Company may accept the Buyer's exchange and cancellation any indebtedness owed to him, her or it by the Company, together with any accrued by unpaid interest thereon, that was outstanding as of June 30, 2016. View More

Purchase and Sale of Note and Warrant. (a) Purchase of Notes and Warrants. Subject to the satisfaction (or waiver) of the conditions set forth in Sections 6 and 7 below, the Company shall issue and sell to each Buyer, and each Buyer severally, but not jointly, agrees to purchase from the Company on the Closing Date (as defined below) a Note in the original principal amount as is set forth opposite such Buyer's name in column (3) on the Schedule of Buyers, along with Warrants to initially acquire up to that aggregate number of Warrant... Shares as is set forth opposite such Buyer's name in column (4) on the Schedule of Buyers. (b) Closing. The closing (the "Closing") of the purchase of the Notes and the Warrants by the Buyers shall occur at the offices of Kelley Drye & Warren LLP, 101 Park Avenue, New York, NY 10178. _________________. The date and time of the Closing (the "Closing Date") shall be 10:00 a.m., New York time, on the first (1st) Business Day on which the conditions to the Closing set forth in Sections 6 and 7 below are satisfied or waived (or such other date as is mutually agreed to by the Company and each Buyer). As used herein herein, "Business Day" means any day other than a Saturday, Sunday or other day on which commercial banks in New York, New York are authorized or required by law to remain closed. (c) Purchase Price. The aggregate purchase price for the Notes and the Warrants to be purchased by each Buyer (the "Purchase Price") shall be the amount set forth opposite such Buyer's name in column (5) on the Schedule of Buyers. Each Buyer shall pay $950 for each $1,000 of principal amount of Notes and related Warrants to be purchased by such Buyer at the Closing. Each Buyer and the Company agree that the Notes and the Warrants constitute an "investment unit" for purposes of Section 1273(c)(2) of the Internal Revenue Code of 1986, as amended (the "Code"). The Buyers and the Company mutually agree that the allocation of the issue price of such investment unit between the Notes and the Warrants in accordance with Section 1273(c)(2) of the Code and Treasury Regulation Section 1.1273-2(h) shall be an aggregate amount of $14,000 allocated to the Warrants and the balance of the Purchase Price allocated to the Notes, and neither the Buyers nor the Company shall take any position inconsistent with such allocation in any tax return or in any judicial or administrative proceeding in respect of taxes. (d) Form of Payment. On the Closing Date, (i) each Buyer shall pay its respective Purchase Price (less, in the case of any Buyer, the amounts withheld pursuant to Section 4(g)) to the Company for the Notes and the Warrants to be issued and sold to such Buyer at the Closing, by wire transfer of immediately available funds in accordance with the Flow of Funds Letter (as defined below) and (ii) the Company shall deliver to each Buyer (A) a Note in the aggregate original principal amount as is set forth opposite such Buyer's name in column (3) of the Schedule of Buyers, and (B) a Warrant pursuant to which such Buyer shall have the right to initially acquire up to such aggregate number of Warrant Shares as is set forth opposite such Buyer's name in column (4) of the Schedule of Buyers, in each case, duly executed on behalf of the Company and registered in the name of such Buyer or its designee. View More

Purchase and Sale of Note and Warrant. (a) Purchase of Notes and Warrants. Subject to the satisfaction (or waiver) of the conditions set forth in Sections 6 and 7 below, the Company shall issue and sell to each Buyer, and each Buyer severally, but not jointly, agrees to purchase from the Company on the Closing Date (as defined below) below), (x) a Note in the original principal amount of Notes as is set forth opposite such Buyer's name in column (3) on the Schedule of Buyers, along with Buyers and (y) Warrants to initially acquire up... to that aggregate number of Warrant Shares as is set forth opposite such Buyer's name in column (4) on the Schedule of Buyers. Buyers (the "Closing"). (b) Closing. The closing (the "Closing") of the purchase of the Notes and the Warrants by the Buyers shall occur at the offices of Kelley Drye & Warren LLP, 101 Park Avenue, New York, NY 10178. The date and time of the Closing (the "Closing Date") shall be 10:00 a.m., New York City time, on the first (1st) Business Day on which date hereof (or such other date and time as is mutually agreed to by the Company and each Buyer) after notification of satisfaction (or waiver) of the conditions to the Closing set forth in Sections 6 and 7 below are satisfied or waived (or such other date as is mutually agreed to by below, at the Company and each Buyer). As used herein "Business Day" means any day other than a Saturday, Sunday or other day on which commercial banks in offices of Schulte Roth & Zabel LLP, 919 Third Avenue, New York, New York are authorized or required by law to remain closed. 10022. (c) Purchase Price. The aggregate purchase price for the Notes and the Warrants to be purchased by each Buyer at the Closing (the "Purchase Price") shall be the amount set forth opposite such each Buyer's name in column (5) on of the Schedule of Buyers. Each Buyer shall pay $950 $1,000 for each $1,000 of principal amount of Notes and related Warrants to be purchased by such Buyer at the Closing. Each Buyer The Buyers and the Company agree that the Notes and the Warrants constitute an "investment unit" for purposes of Section 1273(c)(2) of the Internal Revenue Code of 1986, as amended (the "Code"). The Buyers and the Company mutually agree that the allocation of the issue price of such investment unit between the Notes and the Warrants in accordance with Section 1273(c)(2) of the Code and Treasury Regulation Section 1.1273-2(h) shall be an aggregate amount of $14,000 $750,000 allocated to the Warrants and the balance of the Purchase Price allocated to the Notes, and neither the Buyers nor the Company shall take any position inconsistent with such allocation in any tax return or in any judicial or administrative proceeding in respect of taxes. (d) Form of Payment. On the Closing Date, (i) each Buyer shall pay its respective Purchase Price (less, in the case of any Buyer, the amounts withheld pursuant to Section 4(g)) applicable purchase price to the Company for the Notes and the Warrants to be issued and sold to such Buyer at the Closing, Closing by wire transfer of immediately available funds in accordance with the Flow of Funds Letter (as defined below) Company's written wire instructions and (ii) the Company shall deliver to each Buyer (A) a Note the Notes (allocated in the aggregate original principal amount amounts as is set forth opposite such Buyer's name in column (3) of the Schedule of Buyers, and (B) a Warrant pursuant to Buyer shall request) which such Buyer is then purchasing hereunder along with the Warrants (allocated in the amounts as such Buyer shall have the right to initially acquire up to request) which such aggregate number of Warrant Shares as Buyer is set forth opposite such Buyer's name in column (4) of the Schedule of Buyers, purchasing hereunder, in each case, case duly executed on behalf of the Company and registered in the name of such Buyer or its designee. (e) Placement Agent Fees. On the Closing Date, the Company shall pay to ROTH Capital Partners, LLC, as placement agent (the "Placement Agent"), all fees (other than legal fees), reasonable and documented expenses, and reasonable and documented legal fees and expenses (collectively, the "Placement Agent Fees") due to the Placement Agent as of such Closing Date, pursuant to the terms of the engagement letter, dated as of November 3, 2014, between the Company and the Placement Agent (the "Engagement Letter"), by wire transfer of immediately available funds in accordance with the Placement Agent's written wire instructions. View More

Purchase and Sale of Note and Warrant. (a) Purchase of Notes and Warrants. Closing. Subject to the satisfaction (or waiver) of the conditions set forth in Sections 6 and 7 below, below as provided therein, the Company shall issue and sell to each Buyer, and each Buyer severally, Buyer, severally but not jointly, agrees to purchase from the Company on the Closing Date (as defined below) a Note below), (i) Notes in the original an aggregate principal amount as is set forth opposite such Buyer's name in column (3) on the Schedule of Buy...ers, along with Buyers and (ii) Warrants to initially acquire up to that aggregate number of Warrant Shares as is set forth opposite such Buyer's name in column (4) on the Schedule of Buyers. Buyers (the "Closing"). (b) Closing. The closing (the "Closing") of the purchase of the Notes and the Warrants by the Buyers shall occur at the offices of Kelley Drye & Warren LLP, 101 Park Avenue, New York, NY 10178. Closing Date. The date and time of the Closing (the "Closing Date") shall be 10:00 a.m., New York City time, on the first (1st) Business Day on which date hereof (or such other date and time as is mutually agreed to by the Company and each Buyer) after notification of satisfaction (or waiver) of the conditions to the Closing set forth in Sections 6 and 7 below are satisfied or waived (or such other date as is mutually agreed to at the offices of Schulte Roth & Zabel LLP, 919 Third Avenue, New York, New York 10022. The Closing may also be undertaken remotely by the Company and each Buyer). electronic transfer of Closing documentation. As used herein herein, "Business Day" means any day other than a Saturday, Sunday or other day on which commercial banks in New York, The City of New York are authorized or required by law to remain closed. closed; provided, however, for clarification, commercial banks shall not be deemed to be authorized or required by law to remain closed due to "stay at home", "shelter-in-place", "non-essential employee" or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any governmental authority so long as the electronic funds transfer systems (including for wire transfers) of commercial banks in The City of New York, New York generally are open for use by customers on such day. (c) Purchase Price. The aggregate purchase price for the Notes and the related Warrants to be purchased by each Buyer at the Closing (the "Purchase Price") shall be the amount set forth opposite such each Buyer's name in column (5) on of the Schedule of Buyers. Buyers (less, in the case of Lead Investor, any amounts withheld pursuant to Section 4(g) hereof). Each Buyer shall pay $950 $900.09 for each $1,000 of principal amount of Notes and related Warrants to be purchased by such Buyer at the Closing. Each Buyer Closing (less, in the case of Lead Investor, any amounts withheld pursuant to Section 4(g) hereof). The Buyers and the Company agree that the Notes and the Warrants constitute an "investment unit" for purposes of Section 1273(c)(2) of the Internal Revenue Code of 1986, as amended (the "Code"). The Buyers and the Company mutually agree that the allocation of the issue price of such investment unit between the Notes and the Warrants in accordance with Section 1273(c)(2) of the Code and Treasury Regulation Section 1.1273-2(h) shall be an aggregate amount of $14,000 allocated to the Warrants and as the parties shall mutually agree prior to the Closing Date with the balance of the Purchase Price allocated to the Notes, and neither the Buyers nor the Company shall take any position inconsistent with such allocation in any tax return or in any judicial or administrative proceeding in respect of taxes. -2- (d) Form of Payment. On the Closing Date, (i) each Buyer shall pay its respective Purchase Price (less, in the case of any Buyer, the amounts withheld pursuant to Section 4(g)) to the Company for the Notes and the Warrants to be issued and sold to such Buyer at the Closing, Closing its pro rata portion based on the initial principal amount of Notes being purchased hereunder of an aggregate of (x) $3,000,000 (less, in the case of [REDACTED] (the "Lead Investor") any amounts withheld pursuant to Section 4(g)), to the Company by wire transfer of immediately available funds in accordance with the Flow Company's written wire instructions on Company letterhead signed by an authorized representative of Funds Letter (as defined below) the Company and (y) $2,000,000 to that certain deposit account of the Company with Enterprise Bank & Trust, Account #[REDACTED] (the "Control Account") and (ii) the Company shall deliver to each Buyer (A) a Note (x) the Notes (allocated in the aggregate original principal amount amounts as is set forth opposite such Buyer's name Buyer shall request) and (y) the Warrants (allocated in column (3) of the Schedule of Buyers, and (B) a Warrant pursuant to such amounts as such Buyer shall request), in each case, which such Buyer shall have the right to initially acquire up to such aggregate number of Warrant Shares as is set forth opposite such Buyer's name in column (4) of the Schedule of Buyers, in each case, then purchasing hereunder, duly executed on behalf of the Company and registered in the name of such Buyer or its designee. 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Purchase and Sale of Note and Warrant. (a) Purchase of Notes and Warrants. Subject to the satisfaction (or waiver) of the conditions set forth in Sections 6 and 7 below, the Company shall issue and sell to each Buyer, and each Buyer severally, but not jointly, agrees to shall purchase from the Company on the Closing Date (as defined below) below), as applicable, either (x) a Series A Note in the original principal amount as is set forth opposite such Buyer's name in column (3) on the Schedule of Buyers or (y) a Series B Note in the o...riginal principal amount as is set forth opposite such Buyer's name in column (4) on the Schedule of Buyers, in each case, along with (i) Series A Warrants to initially acquire up to that aggregate number of Series A Warrant Shares as is set forth opposite such Buyer's name in column (4) (5) on the Schedule of Buyers and (ii) Series B Warrants to initially acquire up to that aggregate number of Series B Warrant Shares as is set forth opposite such Buyer's name in column (6) on the Schedule of Buyers. (b) Closing. The closing (the "Closing") of the purchase of the Notes and the Warrants by the Buyers shall occur at the offices of Kelley Drye & Warren Greenberg Traurig, LLP, 101 MetLife Building, 200 Park Avenue, New York, NY 10178. 10166. The date and time of the Closing (the "Closing Date") shall be 10:00 a.m., New York time, on the first (1st) Business Day on which the conditions to the Closing set forth in Sections 6 and 7 below are satisfied or waived (or such other date as is mutually agreed to by the Company and each Buyer). As used herein "Business Day" means any day other than a Saturday, Sunday or other day on which commercial banks in New York, New York are authorized or required by law to remain closed. (c) Purchase Price. The aggregate purchase price for the Notes and the Warrants to be purchased by each Buyer (the "Purchase Price") shall be the amount set forth opposite such Buyer's name in column (5) (7) on the Schedule of Buyers. Each Buyer shall pay $950 for each $1,000 of principal amount of Notes and related Warrants to be purchased by such Buyer at the Closing. Each Buyer and the Company agree that the Notes and the Warrants constitute an "investment unit" for purposes of Section 1273(c)(2) of the Internal Revenue Code of 1986, as amended (the "Code"). The Buyers and the Company mutually agree that the allocation of the issue price of such investment unit between the Notes and the Warrants in accordance with Section 1273(c)(2) of the Code and Treasury Regulation Section 1.1273-2(h) shall be an aggregate amount of $14,000 allocated to the Warrants and the balance of the Purchase Price allocated to the Notes, and neither the Buyers nor the Company shall take any position inconsistent with such allocation in any tax return or in any judicial or administrative proceeding in respect of taxes. 2 (d) Form of Payment. On the Closing Date, (i) each Buyer shall pay its respective Purchase Price (less, in the case of any Buyer, the amounts withheld by such Buyer pursuant to Section 4(g)) to the Company for the Notes and the Warrants to be issued and sold to such Buyer at the Closing, by wire transfer of immediately available funds in accordance with the Flow of Funds Letter (as defined below) Company's written wire instructions and (ii) the Company shall deliver to each Buyer (A) as applicable, either (x) a Series A Note in the aggregate original principal amount as is set forth opposite such Buyer's name in column (3) of the Schedule of Buyers or (y) a Series B Note in the aggregate original principal amount as is set forth opposite such Buyer's name in column (4) of the Schedule of Buyers, and (B) a Series A Warrant pursuant to which such Buyer shall have the right to initially acquire up to such aggregate number of Series A Warrant Shares as is set forth opposite such Buyer's name in column (4) (5) of the Schedule of Buyers and (C) a Series B Warrant pursuant to which such Buyer shall have the right to initially acquire up to such number of Series B Warrant Shares as is set forth opposite such Buyer's name in column (6) of the Schedule of Buyers, in each case, all cases, duly executed on behalf of the Company and registered in the name of such Buyer or its designee. View More

Purchase and Sale of Note and Warrant. (a) Purchase of Notes and Warrants. Subject to the satisfaction (or waiver) of the conditions set forth in Sections 6 and 7 below, the Company shall issue and sell to each Buyer, and each Buyer severally, but not jointly, agrees to shall purchase from the Company on the Closing Date (as defined below) below), a Note in the original principal amount as is set forth opposite such Buyer's name in column (3) on the Schedule of Buyers, along with Warrants to initially acquire up to that aggregate num...ber of Warrant Shares as is set forth opposite such Buyer's name in column (4) on the Schedule of Buyers. documents. (b) Closing. The closing (the "Closing") of the purchase of the Notes and the Warrants by the Buyers shall occur at a place and time mutually agreeable to both the offices of Kelley Drye & Warren LLP, 101 Park Avenue, New York, NY 10178. The Buyer and the Company, but in no case shall the date and time of the Closing (the "Closing Date") shall be any later than 10:00 a.m., New York time, on the first (1st) Business Day on which the conditions to the Closing set forth in Sections 6 and 7 below are satisfied or waived (or such other later date as is mutually agreed to by the Company and each Buyer). As used herein "Business Day" means any day other than a Saturday, Sunday or other day on which commercial banks in New York, New York are authorized or required by law to remain closed. (c) Purchase Price. The aggregate purchase price for the Notes and the Warrants to be purchased by each Buyer (the "Purchase Price") shall be the amount amounts set forth opposite such Buyer's name in column (5) on the Schedule of Buyers. Each Buyer shall pay $950 for each $1,000 of principal amount of Notes and related Warrants to be purchased by such Buyer at the Closing. Each Buyer and the Company agree that the Notes and the Warrants constitute an "investment unit" for purposes of Section 1273(c)(2) of the Internal Revenue Code of 1986, as amended (the "Code"). The Buyers and the Company mutually agree that the allocation of the issue price of such investment unit between the Notes and the Warrants in accordance with Section 1273(c)(2) of the Code and Treasury Regulation Section 1.1273-2(h) shall be an aggregate amount of $14,000 allocated to the Warrants and the balance of the Purchase Price allocated to the Notes, and neither the Buyers nor the Company shall take any position inconsistent with such allocation in any tax return or in any judicial or administrative proceeding in respect of taxes. transaction documents. (d) Form of Payment. On the Closing Date, (i) each the Buyer shall pay its respective Purchase Price (less, in the case of any Buyer, the amounts withheld pursuant to Section 4(g)) to the Company for the Notes and the Warrants to be issued and sold to such Buyer at the Closing, by wire transfer of immediately available funds in accordance with the Flow of Funds Letter (as defined below) Company's written wire instructions and (ii) the Company shall deliver to each Buyer (A) a Note in the aggregate original principal amount as is set forth opposite such Buyer's name in column (3) of the Schedule of Buyers, and transaction documents. (B) a Warrant pursuant to which such Buyer shall have the right to initially acquire up to such aggregate number of Warrant Shares as is set forth opposite such Buyer's name in column (4) of the Schedule of Buyers, transaction documents, in each case, all cases, duly executed on behalf of the Company and registered in the name of such Buyer or its designee. View More